Thursday, May 29, 2008

Patients Catching Fire During Surgery...And Getting Tossed Out Of Court

This true story proves how difficult it has become to pursue legitimate Ohio medical malpractice cases because of recent law changes that favor doctors and hospitals over injured patients. Recently, a patient in Southwest Ohio underwent a medical procedure in a local hospital where electrodes were placed on her scalp. Apparently, an electrode "arced," causing a spark, which combined with oxygen from a nearby oxygen mask. The result? Disaster. Flames shot to the ceiling, and this poor patient literally caught fire, sustaining second and third degree burns to her head and face.

Sounds like a legitmate case, right? It's probably a safe assumption that people are not supposed to catch fire during routine medical care, and when something like this happens, there was probably some human error involved. The patient filed a lawsuit for her bills and injuries, and as required by law, a qualified expert reviewed the case, and testified at a deposition (a procedure where a witness is questioned under oath by an attorney in the presence of a court reporter)that the doctor's failure to properly prep the patient most likely led to the arc, the spark, and the fire.

The trial court judge...... threw the case out of court on technical legal grounds. Apparently, the judge reasoned that since the expert listed other possibilities for the fire (such as a defective electrode), the expert's testimony was "speculative," and therefore dismissed the case. So the patient appealed the dismissal to a Court of Appeals.

The Court Of Appeals reversed the dismissal, and re-instated the lawsuit. In an impressive opinion, Judge Painter hit the bull's-eye with his opening sentence: "Medical treatment should not involve setting a patient's head on fire."

So what's the point here? Here's a woman who actually caught fire during a routine medical procedure, filed suit, secured a qualified expert as required by law, spent months litigating the case.....and the case still got thrown out of court!!!! Thankfully it was revived, but nobody who hears the facts of this case would think it's frivolous or not legitimate. Yet, the rules for expert testimony handed down by courts recently have become so hypertechnical that some courts seem to require perfection before the case can proceed. Now, compare this legitimate case to the PERCEPTION of our legal system regarding malpractice cases: "too many junk or frivolous lawsuits causing our health care costs to go up, doctors practicing defensive medicine because of fear of lawsuits," etc, etc.

I'd say that a patient catching fire is the flipside of the frivolous lawsuit coin. Now, after almost 2 years in the legal system, this patient gets to go back to square one with her lawsuit. Hopefully, she'll receive some justice, and the doctor or hospital can work on preventing this from ever happening again.

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